Apr 2, 2015

Nova Scotia government backs away from showdown with health care unions, avoids Charter collision

Canadian Union of Public Employees, Locals 835 v South Shore District Health Authority, 2014 CanLII 83843 (NS LB)

March 24, 2015 
 

On March 13, after attempting (unsuccessfully) to dismiss the mediator-arbitrator it had appointed to determine bargaining unit composition and trade union representation under its health care restructuring legislation, the Nova Scotia government announced that it had reached an agreement with the public sector unions representing health care workers in the province. This agreement would see the four affected unions continue to represent their current members, and bargain collective agreements jointly as union councils. In doing so, the government backed away from its earlier insistence that union representation for the four streamlined bargaining units mandated by the legislation be decided without input from the trade unions or their members – an approach which the mediator-arbitrator, who refused to resign, declined to slavishly follow.

The Facts:

The Nova Scotia government restructured the delivery of health care services in the province, consolidating nine existing district health authorities into a single provincial health authority, with effect from March 31, 2015, under the Health Authorities Act, which as Bill No. 1 had received Royal Assent on October 3, 2014.

The Act provides that the successor employer provisions in Nova Scotia's labour relations legislation, which among other things call for a representation vote in a new or merged bargaining unit, do not apply to the health care restructuring process. In place of the general successor employer provisions, the Act provides that the new province-wide health authority, along with the Izaak Walton Killam Health Centre authority, will each have four bargaining units: one for nurses, including licensed practical nurses; one for health care workers, engaged in clinical care of patients, who are not nurses; one for clerical workers; and one for support workers. This represents a significant reduction, as pre-restructuring there were more than 45 bargaining units spread across the nine district health authorities, and licensed practical nurses in parts of the province were not incorporated into the nursing unit.

Under the Act, a mediator-arbitrator was to determine bargaining unit composition and trade union representation, without democratic input from bargaining unit members. In selecting a bargaining agent, the mediator-arbitrator was required to consider whether the proposed bargaining agent would facilitate "harmonious labour relations" and "effective and efficient provision of health care," as well as employer preferences. The Act further provided that each union could represent only one type of unit in the revised structure.

The restructuring will affect the bargaining units and collective agreement coverage of more than 21,000 employees of the existing district health authorities. The restructuring will also affect the interests of the trade unions certified as bargaining agents for the 45 units: the Nova Scotia Government and General Employees Union (NSGEU), the Nova Scotia Nurses Union (NSNU), Unifor locals and the Canadian Union of Public Employees (CUPE), as there will be gains and losses of membership, with attendant effects on the unions' political and financial resources.

Following the appointment of a mediator-arbitrator, James Dorsey, a British Columbia arbitrator, the NSGEU brought an application for a declaration of invalidity under section 24 of the Charter of Rights and Freedomson the ground that the labour relations provisions of the Act violated section 2(d) of the Charter, which guarantees freedom of association, by preventing employees from selecting a trade union of their choosing. On November 19, 2014, Mediator-Arbitrator Dorsey held that, although under the Act he had jurisdiction to consider questions of law, and was therefore presumed to have jurisdiction to determine the constitutional validity of provisions of the Act, his jurisdiction was not sufficiently wide to grant the relief sought, which was a general declaration invalidating the entire legislative regime under which he was appointed. The NSGEU's application was accordingly dismissed. See CUPE, Local 835 and Others v. South Shore District Health Authority and Others (Dorsey), unreported, November 19, 2014.

The mediation-arbitration proceedings resumed, to deal with the questions of bargaining unit compositionand trade union representation.

The Arguments:

Bargaining units

The principal disputes regarding bargaining unit composition concerned the composition of the nursing andhealth care units. The NSNU argued that all nurses, including licensed practical nurses, and those performing so-called "generic" roles that were not exclusively reserved for those with nursing qualifications but that were nonetheless occupied by nurses, should be included in the nursing unit, in order to facilitate collaboration. The other trade unions submitted that the inclusion of licensed practical nurses in the nursing unit would result in their being subsumed within the larger nursing group, diluting their ability to advance their interests. These other unions also opposed the inclusion of "generic" roles in the nursing unit. The employers contended that the licensed practical nurses should be included, but that "generic" roles should not be included, in the nursing unit.

Bargaining agents

The unions presented different arguments in respect of each amalgamated bargaining unit. Regarding the nursing unit, the NSNU argued that it should be certified as the bargaining agent on the basis that it represented a majority of the employees that would comprise that unit. The NSGEU submitted that the choice of the union for the nursing unit should be put to a representation vote. The employers made no submissions on the matter. Regarding the health care bargaining unit, the unions favoured certifying a multi-union entity rather than certifying only one of the existing bargaining agents to represent the amalgamated unit. The employers argued that the Act did not permit the certification of a multi-union bargaining agent, and that only one of the existing four unions could be certified in respect of each amalgamated unit. The unions' andemployers' submissions in respect of the clerical and support units are not set out in the decision.

Charter arguments

The unions made a number of arguments based on the application of section 2(d) of the Charter, guaranteeing freedom of association, to the mediation-arbitration proceedings. They submitted that employers should not be permitted to influence the selection of bargaining agents. They further argued that the award must not disturb existing collective agreements or seniority arrangements. The non-NSNU unions asserted that reconfiguration of bargaining unit boundaries infringed employees' freedom of association, particularly in the case of licensed practical nurses, by hampering their ability to advance their interests through collective bargaining. Further, the unions maintained that, wherever there was scope for an interpretation of the legislation that would enlarge employees' collective bargaining rights, that interpretation should be preferred; this would permit Mediator-Arbitrator Dorsey to interpret the legislation so as to allow representation votes or multi-union bargaining agents, for example. Finally, they contended that the requirement in s.89(1)(c) of the Act that each union could be certified in respect of only one amalgamated bargaining unit was an unconstitutional limit on employees' ability to select a union of their choosing.

The employers' submissions regarding the application of section 2(d) are not set out in the decision.

The January 17, 2015 Decision:

Mediator-Arbitrator Dorsey issued a lengthy interim decision on January 17, 2015. The principal points dealt with in the decision are set out below. Dorsey also noted that all the parties had reached agreement on a homogenous system of seniority integration, and on the continued application of existing collective agreements from the time of the amalgamation until those agreements were superseded.

Bargaining units

Mediator-Arbitrator Dorsey noted that s.90(1) of the Act explicitly stated that the nursing unit must include "all unionized employees who occupy positions that must be occupied by a registered nurse or a licensed practical nurse." Therefore, the non-NSNU unions' arguments that licensed practical nurses should be assigned elsewhere must fail. In any event, he also noted that the Nova Scotia Labour Relations Board had previously held that licensed practical nurses share a community of interest with registered nurses. He therefore determined that licensed practical nurses should be included in the nursing unit.

However, he rejected the NSNU's argument that "generic" posts occupied by nurses should be included within the nursing unit, observing that this was plainly not required under s.90(1). He held that, where a nursing qualification was not a requirement of a post, that post was not to be included in the nursing unit. The parties were to identify such posts so that they could be allocated to other units with effect from April 1, 2015.

On the composition of the health care, support and clerical bargaining units, Mediator-Arbitrator Dorsey made a number of determinations about the allocation of particular posts, but also reserved jurisdiction to consider various outstanding matters. In particular, the scope of the health care unit was, in his view, an issue that required further discussion by the parties.

Bargaining agents

Regarding selection of the bargaining agent for the nursing unit, Mediator-Arbitrator Dorsey questioned the NSNU's assertion that it represented a majority of nurses, as its calculations appeared not to include certain groups of employees. He also rejected the NSGEU's argument that he had the authority to conduct a representation vote, holding that if the legislature had intended to confer such authority, it would have done so in the Health Authorities Act. In the event, he declined to certify either union in the absence of a clear majority:

A labour relations reality is that no private or public sector employer wants to bargain with a union or discuss grievances with a union that does not represent a majority of its employees. Employers andunions know [that] having a relationship in which the union does not have majority employee support is not conducive to an environment in which the union can make agreements and resolve differences over the objection of individual grieving employees or groups of employees. It is not an environment conducive to productive collective bargaining. It is not an environment conducive to stable andharmonious labour relations. It is an environment conducive to ongoing disputes, grievance arbitrationand failed ratification votes.

This is why, in the absence of egregious employer interference, no labour relations board may certify a union knowing [that] the union has not demonstrated majority membership or other support, often through a vote, among the group of employees.

The mediator-arbitrator reserved this issue for future consideration, but observed that the government might wish to consider exploring the possibility of holding a representation vote.

Dorsey also declined to certify bargaining agents in any of the other bargaining units. He rejected the proposition that multiple unions could represent a single bargaining unit. However, he also rejected the employers' argument that the Act does not permit single bargaining agents to be formed by combining existing unions, holding that the legislation should not be interpreted so as to benefit some unions over others. He held that an amalgamated union, in some or all of the merged units, was not only compatible with the Act, but a "creative" solution to the problem of representation. He therefore left the matter of representation to future arbitration proceedings, noting that a final decision on bargaining agent need not be made in advance of April 1, 2015.

Charter Issues

Mediator-Arbitrator Dorsey rejected all of the unions' Charter submissions. He held that it was not unconstitutional for legislation to reconfigure bargaining units. In this regard, Dorsey cited the decision of the Quebec Court of Appeal in Quebec (Procureur general) v. Confederation des syndicats nationaux (CSN), 2011 QCCA 1247 (CanLII), reviewed in Lancaster's Human Rights and Workplace Privacy, February 3, 2012, eAlert No. 179, which upheld a large reduction in the number of bargaining units in Quebec's health care sector on the basis that the Charter does not protect any particular bargaining unit scheme.

Regarding the unions' submissions about interpretation of the Health Authorities Act in a manner consistent with the Charter, the mediator-arbitrator was of the view that he had interpreted the Act in a manner consistent with the Charter. He noted that the only provisions that, as interpreted, were alleged to be unconstitutional were the limitations on union representation. He dismissed the argument that these violated s.2(d) of the Charter, stating:

This limitation does not have the "effect of making it impossible to act collectively to achieve workplace goals." Nor does it prevent employees from maintaining their union membership or the formation of a union. An amalgamated successor union can be fashioned in a manner that respects employees' associational rights as advocated by the unions.

This limitation does require employees to respond to the employer restructuring by forming unions that represent employees in province-wide bargaining units with one multi-employer collective agreement per unit. The government sees this as a critical element in achieving the public policy goal of having provincial program and service delivery with province-wide employee mobility. This public policy goal is advanced as a means to help maintain the sustainability of universal health care by streamlining administration and collective bargaining.

.....

The Health Authorities Act does not deny or substantially interfere with employees' ability to associate or their access to engaging in meaningful negotiations with their employer through a collective bargaining process to attain their objectives.

Dorsey concluded his January 17, 2015 decision by noting that further hearings would be scheduled in order to deal with outstanding bargaining unit and bargaining agent issues.

The February 19, 2015 Decision:

On January 29, 2015, the Nova Scotia provincial cabinet issued the Health Authorities Act General Regulations, which, among other things, purported to clarify that the union representing the nursing unit must represent a majority of the employees in the nursing units of the provincial health authority and the Izaak Walton Killam Health Centre authority, combined, as at November 25, 2014. The Regulations had the effect of directing that the NSNU be certified as the bargaining agent for both nursing units.

When the mediation-arbitration proceedings resumed on February 2, 2015, the unions, other than the NSNU, argued that the government had exceeded its authority in seeking, by regulation, to amend the criteria for selection of bargaining agents in the Act. The employers, the government and the NSNU argued that the Regulations were consistent with the regulation-making authority conferred on the government under the Act. In a decision dated February 19, 2015, Mediator-Arbitrator Dorsey noted that, in predetermining the selection of the NSNU as bargaining agent for both the province-wide nursing unit and the Izaak Walton Killam Health Centre nursing unit, even though it did not represent a majority of employees in both units, the Regulations sought to amend the Act, which could only be done through further legislation. He therefore declined to certify the NSNU as the bargaining agent for either unit, notwithstanding the Regulations.

Mediator-Arbitrator Dorsey's decision of February 19, 2015 did, however, determine a number of outstanding bargaining unit matters. He found that the NSGEU had a majority in the health care units of both the province-wide health authority and the Izaak Walton Killam Health Centre authority, and therefore determined that the NSGEU was the successor union for those units. He further found that, subject to a number of local union mergers and membership transfers that had yet to be completed, the NSGEU had majority support in the clerical bargaining units, and indicated that he would make a determination once those mergers and transfers had been completed. Because there was no union representing a majority in the support and nursing units, he declined to make a determination relating to trade union representation for those units, but retained jurisdiction to make such a determination following further submissions.

Provincial government repudiates Dorsey, announces decision to legislate

Mediator-Arbitrator Dorsey's February 19, 2015 decision was met with approval by at least some of the unions, particularly in light of his preference for representation by amalgamated unions, rather than by one existing union at the expense of the others. The Nova Scotia government also responded positively to the determination that all nurses, including licensed practical nurses, must fall within the same bargaining unit.

However, the government expressed disappointment that Dorsey had failed to make determinations regarding trade union representation in the nursing, clerical and support bargaining units. In a press release issued on February 20, 2015, Health Minister Leo Glavine said that "Mr. Dorsey was given a clear mandate: to create a labour landscape that would allow the changes Nova Scotians know are needed. He has failed to fulfil his mandate." The Minister announced that he would introduce new legislation to determine trade union representation.

The NSGEU expressed satisfaction with the February 19, 2015 decision to certify it to represent the health care and, provisionally, the clerical bargaining units. Following the Minster's announcement, the NSGEU said that it was "disgusted" by the government's decision to determine trade union representation through legislation, in violation of workers' right to choose a union. Likewise, Unifor said that the government's plans "added to [its] worries" about the Act, which had involved a "rollercoaster ride" for its health care members. The provincial NDP leader, Maureen MacDonald, expressed hope that "the government [would] now step away from this process and allow the health care unions to work out a fair solution that will reduce the number of bargaining units."

CUPE and the NSNU expressed dissatisfaction with Dorsey's February 19 decision: CUPE stood to lose approximately 4,000 members to the NSGEU; the NSNU supported the implementation of the Regulations, under which it would represent all nurses in the province.

As matters stood, on February 19, 2015, the Dorsey award certified the NSGEU to represent health care workers and, provisionally, clerical workers. With respect to nurses and support staff, Dorsey postponed his decision to give the unions an opportunity to make further submissions. However, in an unexpected andperhaps unprecedented move, the government purported to remove the mediator-arbitrator, and so informed him by letter on February 25. Notwithstanding the government's action, Dorsey took the position that, in accordance with the terms of his appointment, he retained jurisdiction to continue the proceeding. He refused to resign, and issued a new order officially naming NSGEU Local 23 as bargaining agent for the clerical unit.

Government backs away from decision to legislate, announces agreement with unions on bargaining unit representation

In a final, surprising, move, on March 13 the government backed away from its decision to introduce legislation to determine the issue of bargaining unit representation, announcing that it had now reached an agreement with the health care unions under which four councils of unions would be established to bargain on behalf of each bargaining unit – with union membership remaining exactly as it was prior to the government's restructuring plan. In a departure from the process which its legislation envisaged, the government announced in a press release that "[a]ll unionized health-care workers will remain members of their existing unions, and pay dues to those unions as they do now," and that "[e]ach of the four unions will lead one bargaining process, as follows: – Nursing (registered nurses and licensed practical nurses): Nova Scotia Nurses' Union – Health care: Nova Scotia Government and General Employees' Union – Support: Unifor – Administrative professionals (formerly clerical): CUPE."

Parties' reactions:

Premier Stephen McNeil lauded the agreement, stating "Health-care unions have worked with us to reach this important agreement, and I thank them for their willingness to come to the table." Health Minister Leo Glavine echoed this sentiment, calling the deal a "historic agreement" which would improve health care in the province.

Union leaders also expressed satisfaction with the outcome. Said Danny Cavanagh, regional vice-president for CUPE, "I see this as a huge win for us and our members and for everybody that sits at this table." NSNU president Janet Hazelton expressed a similar view: "I'm thrilled that all the nurses in this province, licensed practical nurses, registered nurses and nurse practioners, will be at the same bargaining table. We will have one collective agreement. I see this as a huge win for the nursing profession."

Joan Jessome, president of the NSGEU, went further, noting that there was virtually no difference between the March 13 agreement and a union proposal put forward last summer in bargaining with the government. "It's unfortunate that the premier took six months to come to the position that we were at six months ago. But I'm pleased that he did," Jessome stated. Jessome rejected McNeil's suggestion that the unions were unwilling last August to let one union take the lead in bargaining, as did Unifor Atlantic director Lana Payne, who said, "I think the key difference between last fall and this time around is that the premier was actually involved this time." As to the government's retreat from its former scheme which envisaged employees represented by unions that were not of their choosing, CUPE's Cavanagh expressed the view that the various unions involved "work well together and will continue to do so," and that "there was no need for anybody to say where members should be." Hazelton echoed this view, commenting that the nurses' union was never interested in taking other people's members.

When asked whether health care unions prevailed in the showdown with the government, Premier McNeil demurred, responding: "Patients won."

Comment:

While to the outside observer the Nova Scotia government's abrupt shifts in position – first appointing an arbitrator, then deciding to legislate, and finally negotiating an agreement with affected parties – may seem inexplicable, the government's final acceptance of a negotiated solution was likely significantly affected, not only by the embarrassing political situation in which it found itself, but also by the Supreme Court of Canada's ruling in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (CanLII), in which the Supreme Court, on January 16, 2015, declared that federal legislation depriving employees (in that case, RCMP members) of freedom to choose a union to represent them violated the guarantee of freedom of association in s.2(d) of the Charter of Rights. In this regard, the Nova Scotia government's about-face may well have reflected a recognition on its part that a similar fate might well be in store for any legislated attempt to impose bargaining agents on health care employees without allowing them a voice in the selection of the trade unions which would represent them.